In Indonesia, Judicial Examination plays a decisive role in shaping State Administrative Decisions, highlighting its critical impact on Administrative Justice.
Table of Contents
Understanding State Administrative Decision (KTUN)
A State Administrative Decision (“Keputusan Tata Usaha Negara/KTUN”) is interpreted as:
- A written determination that also includes factual actions;
- Decisions of a State Administrative Bodies and/or Officials in the executive, legislative, judicial, and other state administrators;
- Based on statutory provisions and the general principles of good governance;
- Is final in a broader sense [including decisions that are taken over by the superior authorized official];
- Decisions that have the potential to have legal consequences; and/or
- Decisions that apply to citizens.
Referring to the interpretation stipulated under Article 87 of Law Number 30 of 2014 on State Administrative (“State Administrative Law”) above, therefore KTUN is a decision which issued based on statutory provisions and the general principles of good governance. Specifically, Article 9 of the State Administrative Law also stipulates that every KTUN must be based on statutory provisions and the general principles of good governance. The statutory regulations referred to, namely those that serve as the basis for authority and as the legal grounds for issuing the KTUN. This provision provides a fairly broad scope as the basis for the issuance of KTUN.
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In addition, KTUN is a decision issued by state administrative bodies and/or officials based on their discretion. In practice, however, there are decisions which, despite being issued by an administrative body and/or official within their authority, are not issued solely based on statutory regulations, but also on other grounds, among which is a KTUN issued based on the results of a judicial body’s examination. In such cases, although the decision is still issued by an administrative body and/or official, its issuance is no longer fully based on their discretion and/or the relevant statutory provisions, but rather as a form of implementation or follow up of a judicial body’s examination.
Scope of State Administrative Decision
It should first be noted that there are limitations to the scope of KTUN. Accordingly, not every KTUN can automatically be classified as an administrative decision that may serve as the object of dispute before the State Administrative Court.
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Despite having a broad scope as the basis for its issuance, Article 2 of Law Number 9 of 2004 which has been amended by Law Number 51 of 2009 on the Second Amendment of Law Number 5 of 1986 on State Administrative Court (“State Administrative Court Law”) clearly sets out limitations to the scope of KTUN. It specifically stipulated KTUN that does not fall under the definition of KTUN under the law, namely:
- KTUN that constitutes a civil law act.
- KTUN that constitutes a general regulation.
- KTUN that still requires approval.
- KTUN issued based on the provisions of the Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP) and the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana/KUHAP).
- KTUN issued based on the results of an examination by a judicial body in accordance with the prevailing laws and regulations.
- KTUN regarding the administration of the Indonesian National Armed Forces (Tentara Nasional Indonesia/TNI).
- Decisions of the General Election Commission (Komisi Pemilihan Umum/KPU) both at the central and regional levels regarding the results of general elections.
“Not considered as KTUN: KTUN issued based on the results of an examination by a judicial body in accordance with the prevailing laws and regulations.”
PT. Lubuk Naga, etc. v. The Minister of Forestry, Jurisprudence Number 250 K/TUN/2020 jo. 314/B/2019/PT.TUN.JKT jo. 40/G/2019/PTUN.JKT.
In accordance with the provision above, therefore, a KTUN issued pursuant to a result of a judicial body’s examination, is not essentially classified as KTUN within the meaning of the law. Consequently, this condition implies that such KTUN cannot serve as an object of dispute in the event of an administrative dispute arising from that decision. What happens however when such KTUN subsequently becomes the object of dispute? Can a KTUN issued based on the results of a judicial examination be sued through the State Administrative Court? To understand this issue further, the author will discuss Decision Number 250 K/TUN/2020 jo. 314/B/2019/PT.TUN.JKT jo. 40/G/2019/PTUN.JKT.
In this case, the Claimant demanded a declaration of invalidity or cancellation of a disputed object in the form of a Decree of the Minister of Forestry. The KTUN was apparently issued based on an order from the Supreme Court and therefore was declared unable to be sued in the State Administrative Court.
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There are two objects of dispute in this case. The claim regarding Object of Dispute 2, which will not be discussed here, was rejected. Whereas the claim regarding Object of Dispute 1 was declared as inadmissible. The Judex Facti in the first level of court upheld one of the Defendant’s points of exception, which essentially argued that the Object of Dispute 1 was issued based on a result of a judicial examination and therefore does not fall as a KTUN that can be filed in the State Administrative Court, as referred to the provisions under Article 2 letter e of the State Administrative Court Law.
As for the Object of Dispute 1 in question, namely Decree of the Minister of Forestry Number: SK.579/Menhut-II/2014 on Forest Area in North Sumatra Province, which despite being issued by the Defendant in its capacity as Minister of Environment and Forestry, it was however found that the basis on its issuance was the Supreme Court Decision Number 47 P/HUM/2011.
“The Object of Dispute 1 was issued based on a result of a judicial examination and therefore does not fall as a KTUN that can be filed in the State Administrative Court.”
Judex Facti of the first level of court, through Decision Number 40/G/2019/PTUN.JKT argues:
“… the substance of the object of dispute 1 is to revoke SK.44/Menhut-II/2005 and determine a new North Sumatra Provincial Forest Area in accordance with the order mandated by the Supreme Court of the Republic of Indonesia Decision No. 37 P/HUM/2011…”
The Decision in the first level of court was subsequently upheld at the appellate level through Decision Number 314/B/2019/PT.TUN.JKT, along with the cassation level. As Judex Juris in its legal considerations in Decision No. 250 K/TUN/2020 argued:
“That the object of the 1st dispute is the implementation of the decision of the Supreme Court of the Republic of Indonesia Number 47 P/HUM/2011, dated 2 May 2012, so that based on Article 2 letter e of Law Number 9 of 2004, it cannot be sued in the State Administrative Court.”
The Supreme Court Decision Number 47/P/HUM/2011 is a decision of a judicial review of a material content by the Supreme Court ordering the Minister of Forestry to revoke Decree Number SK/44/Menhut-II/2005 and ordered the Ministry of Forestry to issue a new KTUN in accordance with the applicable laws or by taking into account the new RTRW of the Regency/City as a result of the division of several Regencies in North Sumatra Province.
To better understand of examples on the KTUN that was referred to in Article 2 letter e, the Elucidation of the article has clarified the following:
- Decision by the National Land Agency to issue a land certificate under the name of a person based on a consideration of a civil court decision that has obtained permanent legal force, which explains that the disputed land is a state land and does not have the status of inherited land disputed by the parties.
- Decision like point a above but based on a civil court decision that has obtained permanent legal force.
- Decision to dismiss a notary by the Minister whose duties and responsibilities include the supervision of the notary profession, following a recommendation from the Head of the District Court based on the authority under the provisions of the Law on Public Courts.
Author
Dr Eddy Marek Leks, FCIArb, FSIArb, is the founder and managing partner of Leks&Co. He has obtained his doctorate degree in philosophy (Jurisprudence) and has been practising law for more than 20 years and is a registered arbitrator of BANI Arbitration Centre, Singapore Institute of Arbitrators, and APIAC. Aside to his practice, the author and editor of several legal books. He led the contribution on the ICLG Construction and Engineering Law 2023 and ICLG International Arbitration 2024 as well as Construction Arbitration by Global Arbitration Review. He was requested as a legal expert on contract/commercial law and real estate law before the court.
Co-authored
Miskah Banafsaj is an associate at Leks&Co. She holds a law degree from Universitas Indonesia. Throughout her studies, she was actively involved in student organizations and participated in various law competitions. She has also previously worked as an intern at several reputable law firms. At this firm, she is involved in doing legal research, case preparation, and assists with ongoing matters.
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Sources:
- Law Number 30 of 2014 on Government Administrative.
- Law Number 9 of 2004 on the Amendment of Law Number 5 of 1986 on State Administrative Court.
- Supreme Court Decision Number 250 K/TUN/2020
- Jakarta State Administrative High Court Decision Number 314/B/2019/PT.TUN.JKT
- Jakarta State Administrative Decision Number 40/G/2019/PTUN.JKT
